This paper has been prepared by James Haughton, Social Policy Section of the Parliamentary Library, to mark the 30th anniversary of the High Court’s Mabo (No. 2) decision. It outlines the background and history of the decision, significant subsequent developments, the current status of native title, and potential future developments.
The High Court of Australia’s Mabo (No. 2) decision, handed down on 3 June 1992, marked the first time Australian courts had recognised the existence of native title within Australia. However, it was far from the first time that courts and governments in the British common law tradition had recognised such title, or that Australian courts had been asked to recognise its existence. Furthermore, in both Mabo (No. 2) and previous decisions, Australian courts have made extensive reference to the judgments of other common law settler-colonial countries including Canada, New Zealand and the United States. To explain the history of Mabo (No. 2), and how and why the High Court chose to ‘unsettle’ previously settled law, it is necessary to discuss the legal and social history and developments, both in Australia and overseas, which informed the decision.
The Colonial Era
In 1788, when the British first established a colony in Australia, Britain and other European colonial powers already had ample experience of warring, negotiating, establishing sovereignty over and creating treaties with non-Western and indigenous peoples in Asia, Africa and the Americas. Out of this experience, a set of legal principles were established for dealing with the inhabitants and lands of conquered or ceded territories. A core principle of international law, incorporated into the common law, was that the change of sovereignty did not affect private rights; while the new ruler might alter the law or distribution of property in an ‘act of state’, conquest or cession did not create a lawless vacuum. Such principles were held to apply to Christian and non-Christian subjects alike, whether or not their systems of law were immediately recognisable to Europeans.
The Spanish international lawyer, de Victoria, had argued [in 1532] that the ethnic, cultural and religious differences of American Indians from Europeans were not such as to deprive the Indians of the rights they enjoyed as men by virtue of their common humanity.
Legal and social theorists such as John Locke limited this principle in order to justify the colonisation of North America, arguing that ‘hunter-gatherers’ were not ‘mixing their labour’ with their territory as they did not farm, and hence that Europeans were justified in colonising land in order to farm it and support larger populations. This justification was adopted by 18th century legal scholars de Vattel and Blackstone to create the common law concept that lands which were, from the perspective of a European farmer, ‘desert and uncultivated’, were terra nullius.
However, even lands which were not ‘farmed’ could be recognised as the possessions of native peoples if those peoples were ‘independent nations, with laws and governments of their own’ as was the case in North America and, later, New Zealand. In both these cases, colonial land transfers occurred under a legal regime of land purchase by the Crown negotiated in treaties with indigenous peoples – a practice which, implicitly or explicitly, recognised the prior legal ownership of the land by the indigenous peoples in question. The Crown asserted sovereignty, but not private ownership of the land, beyond an exclusive right to purchase.
In Australia, none of these precedents were followed. The New South Wales colony was considered, in the words of Lord Watson in Cooper v Stuart, ‘a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions.’ Reasons included the early misperceptions of Cook and Banks that Aboriginal people were ‘few in number’, resulting in early governors not being prepared for the populations they encountered; that Aboriginal systems of governance and caring for country did not conform to British preconceptions of tribes, ‘Indian chiefdoms’ or agriculture; and the drastic disruption of Aboriginal society by introduced diseases including smallpox, chickenpox, tuberculosis and sexually transmitted disease. Up to 70 per cent of the Aboriginal population of the Sydney area, and between 30–50 per cent of the entire continent’s Aboriginal population, is believed to have been killed by the pox epidemic of 1789. As with the early colonies of North America, disease greatly disrupted organised Indigenous resistance to the nascent colony and thus removed any political necessity to recognise, accommodate or make treaties with the existing society. Instead, as Governor Bourke proclaimed when quashing Batman’s attempted ‘treaty’ for the purchase of land near Port Phillip, the entire colony was considered ‘vacant lands of the Crown’.
In the 1830–1850 period, in part in reaction to the anti-slavery movement and their own near‑extermination of the Tasmanian Aboriginal peoples, the British (to some extent) revisited the idea of Aboriginal native title and treaties. In this period the British conducted inquiries into the situations of indigenous peoples across the empire, provided for Aboriginal land rights in the new colony of South Australia, signed the Treaty of Waitangi (New Zealand being at that time part of the Colony of NSW), and instructed the NSW Governor that pastoral leases ‘are not intended to deprive the natives of their former right to hunt over these districts, or to wander over them in search of subsistence’. Similar principles animated US jurisprudence, with the ‘Marshall trilogy’ of cases upholding the treaty rights of Native American peoples to be treated as sovereign, though dependent, nations which could not be displaced by the US states. In the contemporaneous New Zealand case of R v Symonds (1847) Chapman J strongly expressed support for the principles of native title and imperial benevolence:
The practise of extinguishing native titles by fair purchases is certainly more than two centuries old. It has long been adopted by the government in our American colonies, and by that of the United States. It is now part of the law of the land … Whatever may be the opinion of jurists as to the strength or weakness of the native title, whatsoever may have been the past vague notions of the natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it is entitled to be respected; that it cannot be extinguished (at least in time of peace) otherwise than by the free consent of the native occupiers. But for their protection, and for the sake of humanity, the government is bound to maintain, and the courts to assert, the Queen’s exclusive right to extinguish it. It follows from what has been said, that in solemnly guaranteeing the native title, and in securing what is called the Queen’s pre-emptive right, the Treaty of Waitangi, confirmed by the charter of the colony, does not assert either in doctrine or in practice any thing new and unsettled.
However, such ‘mere affirmation of a principle of benevolence’ as Justice Blackburn later characterised the South Australian letters patent, did not survive the 19th century.
In the second half of the 19th century, pseudo-Darwinian ideologies of racial hierarchy, with the ‘white race’ on top, largely replaced any concept of ‘common humanity’. In Australia, concurrent improvements in military, transport and other technology after 1860, combined with a rapid increase in the colonial population due to the gold rush and pastoral expansion, meant that frontier violence against Aboriginal peoples greatly increased, often reaching genocidal levels. ‘Within’ the frontier, surviving Aboriginal peoples were often confined to reserves and missions away from their country and subjected to harsh ‘protection’ regimes which aimed to destroy their traditional culture. One of the current impacts of these policies was to greatly increase their descendants’ difficulty in claiming native title rights, as the native title process requires applicants to prove ongoing physical and cultural connections to country.
Indigenous peoples fared little better in countries with allegedly greater legal protections. In New Zealand, following the New Zealand Wars – a series of campaigns against various Maori groups between 1845 and 1872, frequently fought over contested land purchases – the Supreme Court declared in Wi Parata v Bishop of Wellington (1877) that the Treaty of Waitangi was a ‘simple nullity’ as ‘primitive barbarians’ could not enter into treaty relations and, furthermore, that the Maori were incapable of asserting any native title claim against the Crown, as ‘there existed amongst the natives no regular system of territorial rights nor any definite ideas of property in land’. These decisions, and post-war reprisals against Maori populations, meant that Maori lands were frequently seized or subjected to forced sale to the NZ government for little or no compensation.
In the United States (US), as the country expanded westwards to California, the previous policy of recognising ‘Aboriginal title’ and signing treaties with Native American nations was repudiated by the Senate in 1852, and formally abolished by Congress in 1871. It was replaced with an effectively genocidal ‘open season’ in which the State of California frequently paid the expenses of volunteer militias that enslaved or exterminated Californian Native American peoples. In 1863 the US Congress legislated to prevent Native American tribes suing the government for treaty violations, in 1887 the Dawes Act broke reservations into individual ‘allotments’, and in 1903, the US Supreme Court declared in Lone Wolf v Hitchcock that the US Congress could unilaterally abrogate treaties with Native American tribes, whom it described as ‘an ignorant and dependent race’.
In Canada, the Civilisation of Indian Tribes Act 1857 and the Indian Act 1867 made Aboriginal people wards of the state, denied them citizenship and voting rights, forbade many religious and cultural practices, forbade Aboriginal people leaving reservations without permission, and established the abusive Indian Residential Schools system which forcibly removed Aboriginal children from their families and tribes. St Catherine’s Milling and Lumber Company v R (1888) found that any ‘Indian tenure’ was ‘a personal and usufructuary right, dependent upon the good will of the Sovereign’. In other words, Aboriginal people merely had the right to use their lands until the Crown decided otherwise. While Canada continued to sign treaties into the 20th century with Aboriginal peoples as the frontier of settlement expanded, these were seen as making Aboriginal people ‘wards of the state’, confined to reserves under the control of Indian Agents, rather than recognising or granting any rights. Attempting to make ‘Indian claims’ in a court was itself criminalised in 1927. In the only legal case brought before WWII to attempt to claim treaty rights (R v Sylliboy in 1929), an acting County Court judge stated that ‘the Indians were never regarded as an independent power … the savage’s right of sovereignty, even of ownership, was never recognised … the Treaty of 1752 is not a treaty at all and is not to be treated as such’. No appeal was made to a higher court (despite the judgement suggesting that this should occur) and this position became settled law.
Such legislative and judicial attitudes remained largely unchanged for the first two-thirds of the 20th century. In law, indigenous people in common law settler-colonial countries were effectively placed upon the horns of a dilemma. On the one hand, rather than existing prior to and independently of the state, any ‘native title’ was frequently held to be solely a permissive exercise of the Crown’s (or the US Government’s) executive power, which could be withdrawn at any time and only be constrained by instruments of state (such as treaties) rather than courts subject to the Crown. On the other hand, the validity of any such treaties was denied on the grounds that indigenous people, as ‘savages’, had no ability to enter into such instruments, or to have systems of law and property ownership at all, and in any case such treaties could be abrogated at will by Congress or the Crown, which was ‘the sole judge of its own justice’ as Wi Parata put it. Perhaps ironically, it was only in colonies, in cases brought to the British Privy Council and Australian cases involving the Territory of Papua that the older concept of native title enduring a change of sovereignty was usually, if inconsistently, upheld.
In the wake of World War II, the worldwide decolonisation movement, and similar movements against racism and apartheid, ‘settler-colonial’ nations changed their laws and rhetoric towards indigenous peoples away from racialised terms. This made little substantive difference where indigenous land claims were concerned. In the 1950s and 1960s, settler-colonial governments became willing to recognise indigenous populations as nominally equal citizens within their nation-states; but they were not prepared to recognise them as possessing unique or prior claims. As Canadian Prime Minister Trudeau put it in 1969:
It is inconceivable, I think, that in a given society one section of a society should have a treaty with the other section of society. We must all be equal under the laws and we must not sign treaties among ourselves … Indians should become Canadian as all other Canadians. This is the only basis on which I see our society can develop as equals. But [A]boriginal rights, this really means saying, “We were here before you. You came and cheated us, by giving us some worthless things in return for vast expanses of land, and we want to reopen this question. We want you to preserve our [A]boriginal rights and to restore them to us.” And our answer – our answer is “no.”… If we think of restoring [A]boriginal rights to the Indians, well what about the French, who were defeated at the Plains of Abraham? … We will be just in our time. That is all we can do. We will be just today.
Instead, policies of assimilation prevailed, leading in North America to the attempted ‘termination’ of treaties, native reserves, and other unique features of indigenous policy. Similarly in 1961 all Australian governments signed on to a ‘policy of assimilation’, which was described thus:
The policy of assimilation means in the view of all Australian governments that all aborigines and part-aborigines are expected eventually to attain the same manner of living as other Australians and to live as members of a single Australian community enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians. Thus, any special measures taken for aborigines and part-aborigines are regarded as temporary measures not based on colour but intended to meet their need for special care and assistance to protect them from any ill effects of sudden change and to assist them to make the transition from one stage to another in such a way as will be favourable to their future social, economic and political advancement.
It was in this social and legal context that Australia’s first native title case, Milirrpum v Nabalco (the Gove Land Rights case) was brought to the Northern Territory Supreme Court in 1968, and decided in 1971.
The Gove Land Rights case
On 13 March 1963, the Commonwealth Government excised more than 300 square kilometres of land from the then Arnhem Land Aboriginal Reserve, so bauxite found there could be mined. There was no consultation with the Aboriginal inhabitants. Two Australian Labor Party (ALP) Parliamentarians, Kim Beazley (senior) and Gordon Bryant subsequently visited Reverend Edgar Wells, Superintendent of the Yirrkala Methodist church mission, in July 1963. Yolngu leaders objected to the lack of consultation, the secrecy of the Government’s agreement with Nabalco, and their concern about the impact of mining on the land unless their voices were heard.
The Yolngu traditional owners of the Gove Peninsula then submitted the Yirrkala Bark Petitions to the Australian Parliament in August 1963. The first two petitions, requesting an inquiry, were presented to the House of Representatives on 14 August 1963 by Jock Nelson, Member for the Northern Territory, and on 28 August 1963 by Arthur Calwell, Leader of the Opposition. A Parliamentary Committee of Inquiry listened to evidence presented at Yirrkala and in Darwin. The Committee’s report acknowledged the rights the Yolngu set out in the petitions and recommended to Parliament on 29 October 1963 that compensation for loss of livelihood be paid, that sacred sites be protected and that an ongoing Parliamentary Committee monitor the mining project. However, this did not occur. The Yolngu then took their case to the NT Supreme court.
The Yolngu claimants argued that, on the one hand, their property rights were protected by the South Australian Letters Patent (as the Northern Territory was part of South Australia until 1910), perhaps the closest thing Australia had to a colonial-era treaty; and, on the other, they had those property rights by virtue of their own law and possession and this was not disturbed by the change of sovereignty.
Blackburn’s judgment, in the absence of Australian case history, drew heavily on the recent international precedents. It was in line with what Hookey (in an influential commentary) called:
… the judicial tide, in countries settled by people of European stock, [which] had turned against litigants belonging to ethnic minorities with similar claims to the Arnhem land claimants, in situations where these claims lacked statutory backing and authorization.
Consequently, it caught the Yolngu applicants squarely on the horns of the dilemma described above. In a judgment reminiscent of R v Sylliboy, Justice Blackburn ruled that the South Australian Letters Patent had never applied to the Northern Territory but only to the original South Australian colony; had never had any real legal effect, but were only an ‘expression of imperial benevolence’, a rhetorical flourish; and in any event had been overruled by subsequent legislation. Justice Blackburn was somewhat more sympathetic towards the claim of continuing native title and, in one often-quoted part of his judgement, effectively overturned Cooper v Stuart in finding that the Yolgnu had a settled system of law:
The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.
However, Justice Blackburn was not satisfied on the facts that the claimants had demonstrated uninterrupted possession since 1788. Furthermore, in line with the weight of international precedent, he did not find that Yolgnu relationships to the land were equivalent to property rights – an interpretation immediately rejected by the claimants. This decision subsequently led many Aboriginal people to seek legislated rather than judicial redress for their land claims, a process that culminated at the Commonwealth level in the Aboriginal Land Rights (Northern Territory) Act 1976 and at the state level in legislation such as the New South Wales Land Rights Act 1983 (NSW), although the breadth of land rights legislation varies widely from state to state.
From the 1970s to the Mabo Decision
Milirrpum v Nabalco also proved to be one of the last significant decisions in Commonwealth countries to reject the common-law validity of native title. In 1973, the Canadian Supreme Court overturned a key case cited by Justice Blackburn, finding in Calder v. Attorney-General of British Columbia (1973) that ‘Aboriginal title’ derived from ongoing occupancy and use could continue to exist, even in the absence of treaties or royal proclamations protecting it. In Calder, Justices Hall, Spence and Laskin criticised Justice Blackburn’s judgment, writing:
The essence of his [Blackburn J’s] concurrence with the Court of Appeal judgment lies in his acceptance of the proposition that after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognized by the conqueror or discoverer, [t]hat proposition is wholly wrong as the mass of authorities previously cited, including Johnson v. McIntosh and Campbell v. Hall, establishes.
In 1973, notwithstanding Blackburn’s verdict, the Australian High Court also reaffirmed the existence of native title in Papua.
Throughout the 1970s, in response to civil and indigenous rights activism of the era, many nations revisited their colonial histories and policies of assimilation. In the US, the Nixon Government overturned the ‘termination’ policy in favour of supporting tribal self-government. In New Zealand, after many years of considering the Treaty of Waitangi a ‘nullity’, continued campaigning by Maori for the Treaty to be respected led to the Treaty of Waitangi Act 1975 (NZ), which established a permanent commission of inquiry, the Waitangi Tribunal. The Tribunal investigates claims made by Maori against the Crown under the treaty and makes recommendations on applying the Treaty’s principles. In a parallel development in international law, in 1975 the International Court of Justice issued an advisory but influential ruling on the status of the Western Sahara that rejected doctrines of sovereignty-by-discovery and terra nullius in favour of the self‑determination rights of the tribes of the Western Sahara territory.
In Australia, the Whitlam Government initiated the Woodward Inquiry into Aboriginal land rights, leading to the Fraser Government’s Aboriginal Land Rights (Northern Territory) Act 1976, and passed the Racial Discrimination Act 1975, which invalidated most anti-Indigenous state legislation and was subsequently key to Mabo’s success. In 1979 the Australian High Court, while dismissing the Coe case’s argument for Aboriginal sovereignty, suggested it would be willing to reconsider Milirrpum v Nabalco:
The allegations … may have been intended to raise a claim that the aboriginal people had rights and interests in land which were recognised by the common law and are still subsisting. In other words it may have been desired to attack the correctness of the decision of Blackburn J in Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141. That would be an arguable question if properly raised.
Other justices of the High Court also indicated openness to native title claims in their verdicts on the Coe case, with Justice Murphy writing:
Blackburn J’s judgment … is not binding on this Court … Another was Cooper v. Stuart (1883), 14 AC 286. In that case, the Privy Council stated that the colony of New South Wales was not acquired by conquest, but was “practically unoccupied, without settled inhabitants or settled law at the time it was peacefully annexed to the British dominions” (at p. 291). That view is not binding on us (see Viro v. The Queen  HCA 9; (1978), 52 ALJR. 418). “Occupation” was originally a legal means of peaceably acquiring sovereignty over territory otherwise than by secession or conquest. It was a cardinal condition of a valid “occupation” that the territory should be terra nullius – a territory belonging to no-one – at the time of the act alleged to constitute the occupation. “Territory inhabited by tribes or peoples having a social and political organisation cannot be of the nature terra nullius”… There is a wealth of historical material to support the claim that the aboriginal people had occupied Australia for many thousands of years; that although they were nomadic, the various tribal groups were attached to defined areas of land over which they passed and stayed from time to time in an established pattern; that they had a complex social and political organisation; that their laws were settled and of great antiquity.
This turning of the ‘judicial tide’ and developing recognition of Indigenous rights in common law countries set the scene for Eddie Mabo and his co-claimants’ claim to have their title over their lands in the Torres Strait Islands recognised.
Eddie Koiki Mabo was already a distinguished community leader and campaigner for Aboriginal and Torres Strait Islander rights when he was made aware that, under Australian law as it stood in the late 1970s, he, his family and his people had no property rights in their lands. AIATSIS summarise the events:
A turning point in Koiki’s life happened while he was working on campus as a gardener at James Cook University. University historians Noel Loos and Henry Reynolds recall:
‘…we were having lunch one day when Koiki was just speaking about his land back on Mer, or Murray Island. Henry and I realised that in his mind he thought he owned that land, so we sort of glanced at each other, and then had the difficult responsibility of telling him that he didn’t own that land, and that it was Crown land. Koiki was surprised, shocked … he said and I remember him saying, ‘No way, it’s not theirs, it’s ours!’
Koiki went on to give a speech at a land rights conference at the university explaining the traditional land ownership and inheritance system that his community followed on Mer. A lawyer in the audience noted the significance of Koiki’s speech and suggested there should be a test case to claim land rights through the court system.
A significant aspect of the Mer property system is that it involved individual-owned or family‑owned garden and fishing plots that were inherited along familial lines. This system had more similarities with western notions of property than that of the Yolngu, and it was thought that the courts would be more likely to recognise it as constituting ‘ownership’, which Justice Blackburn had been unable to do.
Legal proceedings for the case began on 20 May 1982, when a group of four Meriam men, Eddie Koiki Mabo, Reverend David Passi, Sam Passi, James Rice and one Meriam women, Celuia Mapo Sale, brought an action against the State of Queensland and the Commonwealth of Australia, in the High Court, claiming ‘native title’ to the Murray Islands.
The Mabo Case challenged the existing Australian legal system from two perspectives:
- On the assumption that Aboriginal and Torres Strait Islander peoples had no concept of land ownership before the arrival of British colonisers in 1788 (terra nullius).
- That sovereignty delivered complete ownership of all land in the new Colony to the Crown, abolishing any existing rights that may have existed previously.
The Meriam claimants may have been buoyed by the fact that on 11 May 1982, in Koowarta v Bjelke-Petersen, the High Court had narrowly (4-3) ruled in favour of Wik man John Koowarta, and against the Queensland Government, on issues of land rights, international law and racial discrimination. In 1976, Koowarta and others had been blocked by the Bjelke-Petersen Government from buying a cattle station on their ancestral lands, using funds from the Aboriginal Land Funds Commission. Koowarta argued that this contravened the Racial Discrimination Act 1975 (RDA). In response, the Queensland Government argued that the RDA was unconstitutional as the Commonwealth lacked the constitutional power to override the state’s action. The High Court found that the Commonwealth could use its external affairs power to pass domestic legislation to fulfil its obligations under an international treaty (the Convention on the Elimination of all Forms of Racial Discrimination). The RDA could therefore be used to constrain the states from racially discriminatory actions, including blocking land acquisition by Indigenous people.
The High Court made another encouraging decision in February 1985, when it ruled unanimously in Gerhardy v Brown that the South Australian Pitjantjatjara Land Rights Act 1981 (SA) was a ‘special measure’ for the advancement of a disadvantaged group, and therefore did not contravene the RDA. Justice Deane also observed in his judgment in Gerhardy v Brown that Milirrpum v Nabalco was an unjust outcome:
… almost two centuries on, the generally accepted view remains that the common law is ignorant of any communal native title or other legal claim of the Aboriginal clans or peoples even to ancestral tribal lands on which they still live: see Milirrpum v. Nabalco. If that view of the law be correct, and I do not suggest that it is not, the common law of this land has still not reached the stage of retreat from injustice which the law of Illinois and Virginia had reached in 1823 when Marshall C.J., in Johnson v. McIntosh, accepted that, subject to the assertion of ultimate dominion (including the power to convey title by grant) by the State, the “original inhabitants” should be recognised as having “a legal as well as just claim” to retain the occupancy of their traditional lands.
By the mid-1980s, recognition of native title and other Indigenous rights had advanced in other common law jurisdictions. In 1982, Canadian Aboriginal treaties and rights (including native title rights) became protected under the Canadian Constitution by article 35 of the Canadian Constitution Act 1982. In 1984, the Canadian Supreme Court ruled in Guerin v The Queen that native title was sui generis, pre-existing European colonisation, and that the Canadian Government had a fiduciary duty to protect it. In New Zealand, the Waitangi Tribunal’s powers to investigate alleged violations of the Treaty of Waitangi were extended back to 1840. In 1986, Te Weehi v Regional Fisheries Officer established the existence of customary Maori fishing rights even where Maori no longer retained land ownership. In other cases, the New Zealand High Court found that terms in legislation such as ‘Maori ancestral land’ should be construed broadly to encompass lands and waters to which Maori people had spiritual or ancestral ties, whether or not those lands or waters remained in Maori hands, and gave considerable weight to the findings of the Waitangi Tribunal in determining what broader Maori interests in land were.
Meanwhile, in April 1985, in an attempt to pre-empt the Mabo case’s outcome, the Queensland Parliament passed the Queensland Coast Islands Declaratory Act 1985, which purported to extinguish without compensation all property rights in the Torres Strait Islands which may have existed before their annexation by Queensland in 1879. Eddie Mabo and the other Meriam claimants then brought a second case, Mabo v. Queensland (No. 1), to the High Court challenging this Act as being inconsistent with the RDA, among other grounds. In 1988, in a 4-3 decision, the Court decided that the Queensland Act was inconsistent with the RDA, as it infringed the human right to property on a racial basis, and was thus invalid in its attempt to extinguish any rights possessed by the Meriam people.
With this case decided, on 27 February 1986 the High Court remitted the case to the Supreme Court of Queensland for determination of issues of fact. Justice Moynihan of the Queensland Supreme Court undertook a discovery process to ascertain the facts of Meriam people’s laws, customs and connection to their lands. This ensured that the Court would not make a decision similar to Justice Blackburn’s in Milirrpum v Nabalco, who was unpersuaded of the facts of a property-holding relationship. Justice Moynihan delivered his findings to the High Court on 16 November 1989, and the High Court resumed considering the case on 20 March 1991. Sadly, Eddie Mabo passed away from cancer on 21 January 1992.
The Mabo No. 2 Decision and the Native Title Act
The Mabo (No. 2) judgment was handed down on 3 June 1992. In the judgment, six of the seven judges of the High Court found that native title existed in Australia and had survived the acquisition of sovereignty by the Crown, which had acquired ‘radical title’ but not full beneficial ownership of Australian lands. The six concurring judgments made extensive use of the overseas precedents listed above, with some justices, such as Justice Brennan, laying more emphasis on the overturning of assumptions of terra nullius in international law, and others on the common law traditions of native title that had been revitalised since 1973. Only Justice Dawson held to the late 19th and early 20th century opinion that any such title was merely a form of permissive occupancy.
The Court also found that the Crown’s alienation of land, for example by grant of freehold title, had the effect of extinguishing native title, to the extent of any inconsistency. Three justices ruled that this extinguishment would entitle the native title holders to compensation. Justice Toohey further asserted that the Crown had a fiduciary duty to protect native title, similar to that found in Canada in R v Guerin. However, this did not form the basis of the majority judgment, which found that the Crown had the ability to extinguish native title without compensation if it was done according to law. Accordingly (and in agreement with the first Mabo case) governments could not extinguish native title without compensation after the date on which the Racial Discrimination Act 1975 came into effect. In effect, the Crown was bound from extinguishing native title not by its recognition of pre-existing rights and societies per se, but by its own modern commitment not to take racially biased actions. A subsequent case, Coe v Commonwealth (1993) held that Mabo’s recognition of property rights stemming from Aboriginal society’s laws and customs did not extend to recognising any other sovereign or law-making aspect of Aboriginal societies.
Furthermore, the High Court found that native title cannot be revived once extinguished, and ceases to exist if the native inhabitants have not successfully maintained their customs and traditions relating to the land. This led to what might be considered an unjust outcome, in that the Aboriginal peoples whose societies have been most disrupted by colonisation, for example by displacement to missions or by child removals, are those least likely to be able to claim native title. In recognition of this, the Keating Government established an Aboriginal Land Fund concurrently with the Native Title Act 1993, to enable Aboriginal and Torres Strait Islander people to buy property.
In response to the Mabo (No. 2) decision, the Keating Government passed the Native Title Act 1993 (the Act), with states also establishing mirror legislation. The Act functioned to: define native title in law as rights and interests possessed under the traditional laws and customs of Aboriginal and Torres Strait Islander peoples, and recognised by the common law; protect native title from extinguishment by any mechanism contrary to those laid out in the Act; confirm the validity of previous land grants, forms of land title, and Crown actions; establish a mechanism (the National Native Title Tribunal (NNTT)) under which claims to Native Title could be made and registered; establish a framework through which government actions on land which had, or potentially had, native title could be negotiated (the future acts regime); and established liability for compensation for Crown acts between the date of the Racial Discrimination Act 1975 and the commencement of the future Acts regime. It also made provisions for native title holders to surrender native title by agreement, but these provisions were not initially much used, in part because of the backlog of claims and native title determinations that formed almost immediately after the Act was passed.
In particular, the Act protected native title holders from attempts by states to extinguish native title post-Mabo, for example by Western Australia’s Land (Titles and Traditional Usage) Act 1993, which the High Court held was invalidated by the Act. The Act also established a special ‘right to negotiate’ on lands where native title existed or might exist, under which native title holders could negotiate with miners and other third parties benefiting from compulsory acquisition of land, in a process subject to arbitration by the NNTT or the Minister if certain time limits were exceeded.
The first decade after Mabo: limitations on native title rights
The Act did not determine whether pastoral leases extinguished native title, as the Keating government believed this should be left to the courts to determine. The High Court’s Wik decision in 1996 subsequently held that native title could co-exist with some pastoral leases (and other forms of non-exclusive title), although some leasehold rights granted by the Crown overrode those of native title holders, to the extent of any inconsistency.
The 1996 Wik decision was often seen as the ‘high water mark’ of native title in Australia. The Wik Peoples and the Thayorre People had claimed that they were the holders of native title to certain areas in northern Queensland. Pastoral leases (that is, Crown leasehold) had been granted over the claimed areas pursuant to Queensland’s successive Land Act regimes. The High Court held that pastoral leases did not necessarily extinguish native title and that an analysis was needed as to the extent of inconsistency between the native title rights asserted and the rights contained in the lease. The question of whether pastoral leases conferred rights of exclusive possession on the grantees became paramount, as exclusive possession rights would be incompatible with any asserted native title rights. Construing the legislation and the terms of the lease thus became important when determining the extent of any inconsistency. This has led to a distinction between ‘exclusive’ native title, which may be found to exist over otherwise vacant or unallocated Crown lands, which has similarities to freehold title in that the native title holders can exclude others from entry or use of the land, and ‘non-exclusive’ native title, which is subordinate to other title (for example, a pastoral lease), and may enable native title holders to access the land for traditional purposes, but does not entitle the native title holder to deny access to others.
The Howard Government’s ‘10 Point Plan’ was a response to the High Court’s decision in Wik. The policy proposal was enacted through the Native Title Amendment Act 1998. These amendments significantly weakened Aboriginal and Torres Strait Islander people’s procedural rights in native title claims and in bargaining with other land users (such as miners and pastoralists). However, the amendments also introduced the Indigenous Land Use Agreement (ILUA) and Future Acts Agreement (also known as Section 31) regimes, which provided a flexible framework in which native title holders and claimants could negotiate legally binding agreements with other land users. A native title claim does not have to be proven for the claimants to enter into an ILUA or Section 31 agreement, meaning that agreements could be made without waiting on court determinations.
In the five years after Wik, the High Court largely abandoned common-law interpretations of native title in favour of a strict statutory interpretation of the Native Title Act 1993. For the most part, their rulings in a series of cases in this period significantly restricted the scope of native title claims. These included:
- Fejo v The Northern Territory (1998) which held that native title could not be revived once extinguished by a past freehold grant, even if the land in question had reverted to vacant Crown land and Indigenous customs and traditions in relation to the land had continued. In this and subsequent cases, the Court characterised native title as ‘inherently fragile’. In contrast to Mabo (No. 2) the court also rejected any applicability of common law native title rulings from other jurisdictions (particularly the 1997 Canadian Supreme Court decision Delgamuukw v British Columbia) to Australia, writing:
Although reference was made to a number of decisions in other common law jurisdictions about the effect of later grants of title to land on preexisting native title rights, we doubt that much direct assistance is to be found from these sources … In some cases the answer that has been given in other jurisdictions may have been affected by the existence of treaty or other like obligations. Those considerations do not arise here.
- Members of the Yorta Yorta Aboriginal Community v Victoria (2002), which held that native title was extinguished if the claimants could not prove (to the satisfaction of the court) that their customs and traditions at the time British sovereignty was declared (1788) had continued without substantial change or interruption. Olney J wrote of the Yorta Yorta claimants that the ‘tide of history has indeed washed away any real acknowledgement of their traditional laws’. This decision was generally interpreted as making native title claims in more heavily ‘settled’ parts of Australia almost impossible, even over vacant Crown land. In response, in 2004 the Victorian Government negotiated a Co-operative Management Agreement with the Yorta Yorta Aboriginal Corporation which acknowledged the Yorta Yorta as Traditional Owners and instituted co-management of a number of parks, reserves and conservation areas within Yorta Yorta country. In 2010 this was extended to Barmah National Park.
- Western Australia v Ward (2002) which again characterised native title as ‘fragile’, consisting of a separable ‘bundle of rights’ which could be individually extinguished. The decision further indicated that native title could be extinguished by the exercise of Crown power over land, even if the land was potentially unused by the Crown. As a consequence, contradicting obiter of the Mabo decision, native title was likely to be partially or totally extinguished in national parks and other nature reserves. However, the court also found that it was not necessary for claimants to have maintained a continuous physical connection to land for native title to continue to exist.
- Wilson v Anderson (2002) found that, in contrast to the pastoral leases of the Wik decision, the ‘perpetual’ pastoral leases of much of western NSW completely extinguished native title.
This series of decisions were met with anger and regret by many Aboriginal and Torres Strait Islander people. Noel Pearson, who had been closely involved in negotiating the Act with the Keating government, accused the High Court of ‘render[ing] a great disservice to Indigenous Australians and to our past and future as a nation … in their flawed and discriminatory conceptualisation of native title and in their egregious misinterpretation of fundamental provisions of the Native Title Act’.
As Pearson and others also pointed out, in contrast to Mabo, these decisions moved against the trend of native title judgements in Canada and New Zealand. In particular contrast were the Canadian case of Delgamuukw (1997) which found that continued occupancy and use was sufficient to establish the existence of native title whether or not customs and traditions had been maintained, and the New Zealand case of Attorney-General v Ngati Apa (2003) which found that, far from being ‘fragile’, native title rights were not to be extinguished ‘by a side wind’ – that is, they could not be extinguished incidentally, but only by clearly expressed legislative intent to do so. Instead, Australian courts adopted ‘a strong judicial tone of retrenchment’.
Notwithstanding the restrictive judgements of this period, the High Court was more accommodating of Indigenous interests in other areas, particularly in access to traditional and natural resources. In Yanner v Eaton (1999)  the Court held that crocodile (and, by extension, other fish and game) could be taken by native title holders, even where this contravened government fishing and game laws or regulations; native title rights to gather natural resources were not extinguished by regulation of fishing and hunting, only by prohibition.
The second decade: agreements and acceptance
In contrast to the litigious and politically contested first decade of native title law post-Mabo, the second decade was marked by an increased focus on determining native title’s existence by consent and agreement-making, at both the private and government level.
There was a significant increase in native title determinations as many key legal questions were regarded as settled, and states turned their attention to more efficient administration of claims. There were correspondingly fewer ‘key’ or controversial court decisions or legislative amendments.
As shown in Figure 1, this period also saw rapid growth in the number of ILUAs between native title holders or claimants and other land users, particularly with governments and the mining industry. Continuing this trend, in 2003 the 100th ILUA was signed, and in 2012 the 700th was signed.
Figure 1: Growth in number of native title determinations to 30 June 2001
During this period, some state governments led the more cooperative approach to native title. Approaches included creating formal guidelines for the negotiation and acceptance of claims, creating Offices of Native Title within state governments, and an increasing focus on negotiating ILUAs that did not just resolve land claims but provided native title claimants with a basis for economic and community development.
As exemplars of this trend, the National Native Title Tribunal cites the 2002 Wimmera Agreement between the Wotjobaluk, Jaadwa, Jadawadjali, Wegaia and Jupagalk peoples and the Victorian Government; the 2003 Burrup and Maitland Industrial Estates Agreement between the WongGoo-Tt-Oo, Ngarluma Yindjibarndi and Yaburara Mardudhunera peoples and the Western Australian Government; and the 2005 Miriuwung Gajerrong Ord Final Agreement between the Miriuwung Gajerrong traditional owners and the Western Australian Government. All of these agreements involved features such as grants of freehold title, co-management roles in parks and reserves, co-management of cultural heritage, and funding for Aboriginal corporations to invest in their communities’ futures. In the Northern Territory, in the wake of the Ward decision, the NT Government negotiated ILUAs over territory National Parks which incorporated co-management into the NT’s parks framework.
In Victoria, a key development was the negotiation and passing of the Traditional Owner Settlement Act 2010 (Vic) between the Victorian Traditional Owner Land Justice Group and the Victorian Government, which provided an alternative negotiation and resolution framework at the state level. Western Australia, Queensland and the Northern Territory had previously passed state-level alternative schemes (under sections 43 and 43A of the Native Title Act 1993), but these had been largely disallowed by the Commonwealth Senate out of concern that they were too restrictive of native title rights. In contrast, the Victorian Act was intended to remedy the difficulties facing Victorian native title claimants in the wake of the Yorta Yorta decision, providing an alternative threshold to be recognised as ‘Traditional Owners’ instead of the Native Title Act 1993’s high requirements of both physical and cultural continuity.
These, and some similar high-profile agreements, generated significant benefits for some native title holders. However, during this decade, it also became increasingly apparent that, despite having native title claims resolved at an increasing rate, many native title holders or claimants were unable to make significant economic gains from their native title holdings, or the agreements associated with them. This was particularly apparent in the context of the 2000s mining boom.
Despite greatly improved relationships between many resource extraction companies and Aboriginal peoples, many native title holders apparently derived quite limited benefits from the increasingly lucrative mines on their traditional lands. This situation was described as ‘poverty in the midst of plenty’ by Professor Marcia Langton or, as put by then Minister Amanda Vanstone, Aboriginal people being ‘land rich but dirt poor’. Explanations for this situation focus on the weak bargaining position native title parties are placed in by the arbitrated and expedited procedure provisions of the Act, the small number of determinations of native title over valuable sea and water resources, and the limited opportunities for native title benefits to lead to economic development or investment.
One demonstration of the increased attention subsequently paid by all parties to achieving better economic outcomes was the 2012 joint proposal by the National Native Title Council and the Minerals Council of Australia, two often-opposed groups, that native title holders should have a new tax-free non-profit corporate form created (an Indigenous Community Development Corporation (ICDC)) which could invest native title-related payments for community benefit without incurring taxation.
In 2012, the Gillard Government presented the Native Title Amendment Bill 2012 to mark the 20th anniversary of the Mabo decision. Among other matters, this Bill was intended to strengthen the economic potential of native title by creating a statutory definition of ‘good faith’ negotiations, lengthening the period before which compulsory arbitration could be sought, and partially reversing the Ward decision by allowing extinguishment of native title in national parks and reserves to be disregarded with the consent of the relevant government, among other matters. The Bill lapsed with the dissolution of Parliament, but gives an indication of the shift in native title policy since 1998.
The third decade: economic rights, reform proposals and compensation
The third decade of native title saw further High Court cases raise the potential significance of native title, and numerous proposals advanced for statutory reform to enable native title holders and claimants to better benefit from native title. However, beyond the significant procedural reforms enacted by the Morrison Government’s Native Title Legislation Amendment Act 2021, these proposals have not yet been taken up. Despite three decades having passed, a number of fundamental features of the native title regime remain largely unresolved, which may potentially be brought before the courts or Parliament for resolution in future.
In 2013, the High Court decided in Akiba v Commonwealth that native title rights could encompass commercial use of resources (in this case, fish and other marine resources of the Torres Strait) and that the regulatory regime on commercial fishing regulated, rather than extinguished, these native title rights. This decision went beyond Yanner in that use for commercial purposes, not merely subsistence or ‘traditional’ purposes, was encompassed, although the High Court also recognised that trading in fish was part of the Torres Strait Islanders’ tradition. Raelene Webb, then president of the National Native Title Tribunal, noted that this decision commenced a significant shift in the High Court’s attitude towards extinguishment:
It could be said that the rights were lifted out of the bucket of legislative extinguishment into the realm of regulation and co-existence. Akiba marked a turning point in native title extinguishment law, towards a greater moderation and realism with the High Court seeming now to regard extinguishment as a ‘legal conclusion of last resort’.
Two other High Court cases following swiftly after Akiba continued the trend away from the harshness of extinguishment in earlier cases. Karpany v Diefmantt involved the successful use of native title defence to a prosecution for possession of undersized abalone, with the State arguing that the native title right to fish had been extinguished by the Fisheries Act 1971 (SA). The High Court again found that the legislative regime was regulatory, not extinguishing. Not long after , in Western Australia v Brown, the High Court unanimously favoured co-existence over extinguishment, this time in relation to an expired mining lease in the Pilbara.
In response to Akiba, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and other proposals for reform, in 2013 then Attorney-General Mark Dreyfus QC commissioned the Australian Law Reform Commission (ALRC) to inquire into potential reforms of the Native Title Act 1993. The ALRC report, Connection to Country, proposed broad-ranging reforms to both the legislative nature and content, and procedural and decision-making aspects (Recommendations 11–30) of the Act and the native title regime. In particular, the ALRC proposed codifying and making generally applicable Akiba’s finding that native title could be used for commercial purposes (Recommendations 9–10), and relaxing the strictness of the ‘substantially uninterrupted and continued existence since sovereignty’ test created by the Yorta Yorta case (Recommendations 1–8), which would reduce the significant costs and burdens of proof faced by native title claimants. This would in effect move the standard for Australian recognition of native title closer to that of the Canadian Delgamuukw standard.
George Brandis QC, Attorney-General when the ALRC submitted its report, did not support these proposed changes to the nature and content of native title owing to the potential legal uncertainty they might create. However, in passing the Native Title Legislation Amendment Act 2021, which largely implemented the ALRC’s proposed procedural reforms, the Government committed to acting on an ALP recommendation to request the Aboriginal and Torres Strait Islander Social Justice Commissioner conduct a further review of the operation of the Native Title Act and its impact on native title holders, which would address these more fundamental issues.
Other proposals for reform focussed upon enabling native title holders to better leverage their assets, enabling them to become ‘bankable’ and registered within the Torrens Title system, without losing the underlying title. Proposals along these lines were put forward by the COAG Investigation into Indigenous Land Administration and Use, in the course of the 2015–16 Australian Human Rights Commission’s Indigenous Property Rights round-table process and, more recently, in the January 2022 report of the Joint Standing Committee on Northern Australia The Engagement of Traditional Owners in the Economic Development of Northern Australia. A common suggestion to all these reports was that the Native Title Act 1993 be amended to be more similar to the Aboriginal Land Rights (Northern Territory) Act 1976 and other state Land Rights Acts, which allow long term leases to be established over Aboriginal land (which can be traded, used as securities, et cetera) without alienating the underlying title from traditional owners.
A significant development at the state level was the South West Native Title Settlement between Western Australia and Noongar native title claimants. The process leading to this settlement began with Bennell v Western Australia and the Federal Court finding in 2006 that Noongar claimants held unextinguished native title over parts of metropolitan Perth. This decision was appealed by the Commonwealth and WA Governments, and subsequently overturned by the full Federal Court in 2008. Rather than appeal to the High Court, the Noongar claimants and the WA Government then entered an extended negotiation, culminating in signing six ILUAs in 2015, although legal appeals from some Noongar claimants who did not wish to surrender their native title claims meant that the Settlement did not formally commence until 25 February 2021.
While these ILUAs are no different in legal form to other ILUAs, their scope (around 30,000 Noongar people and approximately 200,000 square kilometres), economic impact (a total value of approximately $1.3 billion) and the fact that the Settlement involved legislative recognition of Noongar traditional ownership (via the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA)) and ongoing heritage and land access and management rights, meant that the settlement has been called ‘Australia’s first treaty’ by some commentators, though not by the parties. Other large-scale native title claims currently underway include the Cape York ‘One Claim’ native title claim and the 14,000 square kilometre NSW South Coast Yuin claim. Meanwhile, the Victorian, Queensland and Northern Territory Governments are currently engaged in negotiations for formal treaties with Aboriginal and Torres Strait Islander peoples.
A likely impetus for governments to negotiate wide-ranging treaty or settlement agreements with Aboriginal and Torres Strait Islander peoples, particularly those who have or had native title, is the High Court’s 2019 decision in Northern Territory v Griffiths, aka the Timber Creek case. This case was the first case in which the amount of compensation for loss of native title was publicly determined by the courts. The High Court awarded the Ngaliwurru and Nungali peoples (the native title holders) $2.5 million in compensation for loss of non-exclusive native title caused by the development of the Timber Creek township after 1975 (when the Racial Discrimination Act 1975 came into effect). Of this, the greater part ($1.3 million) was awarded for spiritual and cultural loss. The court stated that ‘Spiritual connection identifies and refers to a defining element in a view of life and living. It is not to be equated with loss of enjoyment of life or other notions and expressions found in the law relating to compensation for personal injury’ and that the ‘compensable acts’ of development at various sacred sites could be compared to holes punched in a broader painting, where ‘the damage done was not to be measured by reference to the holes created by the compensable acts alone, but by reference to the effect of those holes in the context of the wider area’.
Prior to this case, Australian governments appear to have thought that compensation for cultural and spiritual harm caused by loss of native title would be comparable to a ‘solatium’, a small additional payment for loss of enjoyment calculated with reference to economic value – hence the Commonwealth and Northern Territory initially appealed the Federal Court’s award (which was upheld by the High Court, for the cultural and spiritual component) as ‘manifestly excessive’. The High Court’s award of a significantly higher level of compensation than governments appeared to have expected creates a strong incentive for governments to negotiate equitable settlements in future similar cases. The High Court’s references to spiritual beliefs forming an indissoluble whole and that they could not be compared, as an aspect of native title, to ‘loss of enjoyment’ or other separable rights also suggests the Court may be moving away from the approach to native title as a ‘fragile’ ‘bundle of rights’ it pursued after the Ward case. As a consequential ‘test case’, the implications of the Timber Creek decision are likely to significantly affect governments’ policies and legislation regarding native title in future.
Conclusions and future issues
As this history has demonstrated, across common law jurisdictions legal recognition of indigenous rights has been regulated by broader social attitudes towards indigenous people as much as ‘internal’ evolution of the common law. Conversely, key legal decisions, such as Mabo No. 2 or Calder, have played a part in substantially changing governmental and subsequently public attitudes.
At the time of writing, native title had been determined to exist over 3,237,967 square kilometres of Australia, or approximately 42.1% of the area of Australia. Non-Indigenous public opinion towards Aboriginal and Torres Strait Islander rights appears increasingly favourable, as shown by the widespread public support for Aboriginal heritage preservation after the now-infamous destruction of Juukan Gorge in 2020 or the apparent, if untested, high public support for the Uluru Statement from the Heart and constitutional recognition of Aboriginal and Torres Strait Islander people. Also notable is that all recent proposals for reform of the native title legislation and framework (as discussed above) have focussed upon strengthening native title rights and economic potential, rather than treating native title as an impediment to development by others, as was the flavour of the 1998 amendments.
As noted by Webb (above), High Court decisions have also moved away from finding ‘extinguishment’ towards ‘co-existence’ wherever possible. This trend will doubtless accelerate if the ALRC’s recommendations to amend the Act to make native title claims easier are adopted, and as governments face compensation bills of uncertain magnitude for extinguishment. A potential, though very uncertain, indication of changing social and legal attitudes was the recent decision in Love v Commonwealth; Thoms v Commonwealth that Aboriginal (and Torres Strait Islander) people could not be held to be ‘Aliens’ under the Commonwealth Constitution section 51(xix) (the aliens power). While the narrow and split nature of the decision limits its broader applicability, the fact that a majority of justices held that Aboriginal people have such deep ties to Australia that they cannot be ‘aliens’ suggests the High Court may be looking beyond the narrow conception of Aboriginal tradition and culture only being judicially significant through its impact on property rights which was advanced in Mabo No. 2 and the 1993 Coe case.
Perhaps significantly, Justice Nettle of the High Court suggested in the Love and Thoms case that the Crown owed a unique obligation of protection to Aboriginal people. This is perhaps comparable to the New Zealand and Canadian concept of a duty akin to a fiduciary duty found in Guerin, commonly expressed as ‘the honour of the Crown’, which is held to bind the Crown to respect, honour and accommodate indigenous interests in its dealings. Although this concept was advanced in Justice Toohey’s Mabo No. 2 judgment, it has not been generally taken up by Australian courts, though neither has it been definitively rejected. This may be because, in the Canadian and New Zealand cases, the concept of ‘the honour of the crown’ arose in the course of interpreting the contemporary meaning of colonial treaties and their constitutional recognition, which, as the High Court pointed out in the Fejo case, Australia lacks. However, with many states moving towards establishing treaties and constitutional recognition actively supported by the current government, this Australian exceptionalism may no longer apply in future.
Another area of future legal significance is the Commonwealth’s potential liability to compensate native title extinguishment for which it is responsible back to not 1975 but 1901, under the Constitution’s section 51(xxxi) guarantee of ‘just terms’ compensation for property taken by the Commonwealth. This would principally be an issue in the Northern Territory, which the Commonwealth directly governed from 1910 until 1978. Conversely, the Commonwealth’s plenary power in the territories (section 122 of the Constitution) may give the Commonwealth immunity from any such claim. A case has recently been filed on behalf of the Yolngu Gumatj clan, seeking compensation for mining on the Gove Peninsula during the 1960s – the same mine that gave rise to Milirrpum v Nabalco – which may determine the interaction of these principles. It remains to be seen whether the current courts, ruling once again on Gove Peninsula land rights in a very different Australia, will effectively uphold, reverse, or find a way to reconcile, the original Gove decision.
. With thanks to Eddie Synot for review.
. The High Court had previously recognised the existence of native title in the Australian Territory of Papua in 1941, described in that case as ‘a communal usufructuary title equivalent to full ownership of the land, so that they were entitled to be compensated on this footing’, see: Geita Sebea v Territory of Papua  HCA 37, (1941) 67 CLR 544. The Court reaffirmed the government’s obligation to protect traditional title interests in Administration of Papua and New Guinea v. Daera Guba  HCA 59, (1973) 130 CLR 353.
. John Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?’, Federal Law Review 5, no. 1 (1972): 85–114.
. Hookey, ‘Gove Land Rights Case’.
. Raelene Webb, ‘The Birthplace of Native Title: From Mabo to Akiba’, James Cook University Law Review 23 (1 January 2017): 31–40.
. Webb, ‘The Birthplace of Native Title’.
. Webb; Hookey, 89. In practice, this meant capable of mounting effective resistance to colonial military forces.
. Hookey, 90.
. Cooper v Stuart (1889) 14 App Cas 286. See also Eddie Synot and Roshan de Silva-Wijeyeratne, ‘Constitutional Foundations: The Persistent Myth of Cooper v Stuart’, in Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making, eds. N. Watson and H. Douglas (London: Routledge, 2021).
. Christopher Warren, ‘Smallpox at Sydney Cove–Who, When, Why?’, Journal of Australian Studies 38, no. 1 (2014): 72; S. Banner, ‘Why Terra Nullius? Anthropology and Property Law in Early Australia’, Law and History Review 23, no. 1 (Spring 2005): 99–101.
. Dennis Foley, ‘Leadership: The Quandary of Aboriginal Societies in Crises, 1788–1830, and 1966’, Transgressions: Critical Australian Indigenous Histories, Aboriginal History Monograph, 16 (2007): 177.
. Despite some observations by the early colonists of the interactions between Aboriginal people, fire, species, and landscape, concepts such as ‘fire stick farming’ did not enter non-Indigenous Australian thinking until 1969. Bill Gammage, The Biggest Estate on Earth: How Aborigines Made Australia (Crows Nest, NSW: Allen & Unwin, 2012), 2–3. R. Bliege Bird et al., ‘The “Fire Stick Farming” Hypothesis: Australian Aboriginal Foraging Strategies, Biodiversity, and Anthropogenic Fire Mosaics’, Proceedings of the National Academy of Sciences 105, no. 39 (2008): 14796–801.
. Foley, ‘Leadership’, 178.
. Craig Mear, ‘The Origin of the Smallpox Outbreak in Sydney in 1789’, Journal of the Royal Australian Historical Society 94, no. 1 (June 2008): 1–22. Boyd H. Hunter and John Carmody, ‘Estimating the Aboriginal Population in Early Colonial Australia: The Role of Chickenpox Reconsidered’, Australian Economic History Review 55, no. 2 (July 2015): 112–38.
. Warren, ‘Smallpox at Sydney Cove’.
. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, Blackburn J at 239 “… one of the reasons for the fact that a system of native land law exists in New Zealand and does not exist in Australia is that in New Zealand the Government had several times to wage armed conflict with organized bands of natives, which never occurred in Australia.” While Australian frontier violence and resistance is now generally known to have been far more widespread than was recognised by non-Indigenous Australians in 1971 (Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Sydney: UNSW Press, 2006)), it remains true that it did not feature the intense military campaigns of the New Zealand war period.
. Museum of Australian Democracy, Letters Patent Establishing the Province of South Australia, Documenting a Democracy website, 19 February 1836; see also S Berg, Coming to Terms: Aboriginal Title in South Australia (Kent Town SA: Wakefield Press, 2010).
. Henry Reynolds and Jamie Dalziel, ‘Aborigines and Pastoral Leases – Imperial and Colonial Policy 1826-1855’, University of New South Wales Law Journal 19, no. 2 (1999): 357.
. Matthew Fletcher, ‘A short history of Indian law in the Supreme Court’, Human Rights Magazine 40, no. 4 (2014), American Bar Association,
. Lyndall Ryan et al., ‘Colonial Frontier Massacres in Australia, 1788-1930: Stage 4 Findings’, University of Newcastle, Centre for 21st Century Humanities website, March 2022: defines ‘genocidal’ or ‘group’ massacres as series or campaigns of massacres carried out over an extended period of time by the same perpetrators with the intent of eradicating Aboriginal people from the area.
. For example, under Queensland’s Aboriginals Protection and Restriction of the Sale of Opium Act 1897.
. US National Archives, ‘Rights of Native Americans: The end of treaty-making, 1871’, website.
. Peter Nabokov, Indians, Slaves, and Mass Murder: The Hidden Story (New York Review of Books, 2016); Leah Asmelash, ‘Colorado Governor Rescinds 1864 Order Encouraging the Massacre of Native Americans’, CNN, 19 August 2021.
. Benjamin Madley, An American Genocide: The United States and the California Indian Catastrophe, 1846-1873 (New Haven: Yale University Press, 2016), 189.
. Ralph W. Johnson, ‘Fragile Gains: Two Centuries of Canadian and United States Policy toward Indians’, Washington Law Review 66, no. 3 (1991): 643.
. Stephanie Cram, ‘Dark History of Canada’s First Nations Pass System Uncovered in Documentary’, CBC News, 19 February 2016.
. Johnson, ‘Fragile Gains’, 681. Specifically it became a federal crime to ‘take Indian claims to court, to raise money to pursue Indian claims or in fact to organize to pursue Indian claims.’ The provision was partly repealed in the 1930s and fully repealed in 1951.
. R v Sylliboy  1 DLR 307.
. Hookey, 98.
. R v Sylliboy.
. Calder v. British Columbia (Attorney General), 1970 CanLII 766 (BC CA). This judgment was subsequently overturned by the Canadian Supreme Court in 1973, in a case analogous to Mabo in that it established the existence of native title in Canada, distinct from any treaty right.
. Lone Wolf v Hitchcock.
. Tate, ‘The Three Precedents of Wi Parata‘.
. Hookey, 94–98.
. United Nations General Assembly, ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, Resolution 1514 (XV), 14 December 1960.
. International Convention on the Elimination of all Forms of Racial Discrimination, done in New York on 7 March 1966,  ATS 40 (entered onto force for Australia (except Art. 14) on 30 October 1975; Art. 14 came into force for Australia on 28 January 1993).
. John Borrows, Recovering Canada: The Resurgence of Indigenous Law, (Toronto: University of Toronto Press, 2002), 102–3.
. Johnson, ‘Fragile Gains’.
. Hasluck, ‘The Policy of Assimilation: Decisions of Commonwealth and State Ministers at the Native Welfare Conference, Canberra, January 26th and 27th, 1961’, (Canberra: 26 January 1961).
. Blackburn J, Gove Land Rights case.
. William IV, ‘Letters Patent Establishing the Province of South Australia (UK)’.
. Blackburn J, Gove Land Rights case.
. Blackburn J, Gove Land Rights case.
. R. Marika, Daymbalipu Mununggurr, W. Wunungmurra, ‘English Translation of Yirrkala Statement in the Gupapunyngu Language’ (National Museum of Australia, 6 May 1971). Justice Blackburn himself seems to have considered that there was a strong moral case for land rights, as he subsequently privately circulated a proposal for legislated land rights to the McMahon Government and the Whitlam Opposition. Graeme Neate, ‘50 Years after the “Gove” Land Rights Judgment: Sir Richard Blackburn and Aboriginal Land Rights’, Ethos: Official Publication of the Law Society of the Australian Capital Territory, no. 260 (Winter 2021): 40.
. Tee-Hit-Ton remains settled law in the US, and the US Supreme Court is generally regarded as hostile to Native American land (and sovereignty) claims; City of Sherrill v. Oneida Indian Nation of NY, (2005) 544 US 197; Johnson, ‘Fragile Gains’; Matthew Fletcher, ‘The Supreme Court’s Indian Problem’, Hastings Law Journal 59 (2007): 579; Oklahoma v. Castro-Huerta, (2022) 142 S. Ct. 1612; but this is somewhat offset by the US Federal Government’s support for policies of tribal self‑determination. For example, the decision in Tee-Hit-Ton that Alaskan Natives’ land and natural resources could be taken by the US Government without compensation was met with the Alaska Native Claims Settlement Act 1971 (US) which transferred 44 million acres and $963 million to Alaskan Native corporations in settlement of land claims.
. Calder. (Calder) Merelle DuVé, ‘Calder v Attorney-General of British Columbia (1973)’, Agreements, Treaties and Negotiated Settlements, 9 November 2005.
. Calder; Neate, ‘50 Years after the “Gove” Land Rights Judgment’.
. The word refers to the idea that treaties and other unique aspects of Indian policy should be ‘terminated’.
. Johnson, ‘Fragile Gains’.
. J. D. Sutton, ‘The Treaty of Waitangi Today’, Victoria University of Wellington Law Review 11 (1981): 17 provides a contemporary study of these parallel developments.
. Coe v. Commonwealth, Gibbs J, at . What made Coe’s case ‘improperly raised’ was that there was no claim to specific lands put forward, simply a general claim.
. Neate, ‘50 Years after the “Gove” Land Rights Judgment: Sir Richard Blackburn and Aboriginal Land Rights’.
. ‘Eddie Koiki Mabo’: As part of his [Eddie Mabo’s] testimony during the case he explained how his grandfather had taken him to the village of Las and shown him his land boundaries and his fish traps. His grandfather explained how meriba ged, or our land, came to be handed down through five generations to his father. His grandfather told him, ‘If your father will get old you will take his land like he did when I get old’, AIATSIS website.
. Webb, 35.
. Gove Land Rights case, Blackburn J at 270–271: ‘it seems easier, on the evidence, to say that the clan belongs to the land than that the land belongs to the clan’.
. Now the Indigenous Land and Sea Corporation.
. Koowarta was ultimately unsuccessful in obtaining the land, as the Bjelke-Petersen Government declared it a national park in 1988 in order to thwart the purchase. In 2010 the Queensland Government excised part of the park, and in 2012 the excised portion was handed back to the Wik people. Lorena Allam, ‘John Koowarta’s Case and the Racial Discrimination Act at 40’, Earshot, ABC RN (18 May 2015).
. Gerhardy v Brown.
. Gerhardy v Brown; Neate.
. Guerin v The Queen,  2 SCR 335.
. Te Weehi v Regional Fisheries Officer  1 NZLR 680.
. Palmer, ‘Law, Land, and Maori Issues’.
. As the Koowarta case, and other cases such as the controversy around the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 (Cth) showed, this kind of legislative brinkmanship was a standard tactic of the Bjelke-Petersen Government.
. Advisory Opinion on Western Sahara.
. Robert Van Krieken, ‘From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Enterpreneurship’, University of New South Wales Law Journal 23, no. 1 (2000): 63.
. Kirsty Gover, ‘The Honour of the Crowns: State-Indigenous Fiduciary Relationships and Australian Exceptionalism’, Sydney Law Review 38, no. 3 (2016): 339–68.
. Maureen Tehan, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’, Melbourne University Law Review 27, no. 2 (2003): 523–71.
. This fund, now the Aboriginal and Torres Strait Islander Land and Sea Future Fund, funds the Indigenous Land and Sea Corporation.
. Tehan, ‘A Hope Disillusioned.’
. Tehan, ‘A Hope Disillusioned.’
. Anne Davies, ‘Keating’s Struggle to Implement Mabo Decision Revealed in 1994-95 Cabinet Papers’, Guardian, 31 December 2017; Paul Keating, ‘Lowitja O’Donoghue and Native Title: Leadership Pointing the Way to Identity, Inclusion and Justice’, Lowitja O’Donoghue Oration, Don Dunstan Foundation, (2011).
. The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors, (1996) 187 CLR 1.
. Tehan, ‘A Hope Disillusioned’.
. Robert French, ‘Western Australia v Ward: Devils (and Angels) in the Detail’, Australian Indigenous Law Review 7, no. 3 (2002).
. Delgamuukw v British Colombia,  3 SCR 1010.
. Lisa Strelein, ‘Fiction over Fact: Extinguishing Native Title in the Larrakia Case’, Indigenous Law Bulletin 4, no. 18 (1999): 18–21.
. Members of the Yorta Yorta Aboriginal Community v Victoria, (2002) 214 CLR 422.
. State Government of Victoria, ‘Agreements with Traditional Owners: Yorta Yorta Agreements’, 2022.
. Raelene Webb, ‘Nature Reserves, National Parks and Native Title after Ward’, Australian Mining and Petroleum Law Journal 21, no. 3 (2002): 282–93.
. Alex Reilly, ‘From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward’, ELaw Journal: Murdoch University Electronic Journal of Law 9, no. 4 (2002): 1–32; Tehan, ‘A Hope Disillusioned’.
. Noel Pearson, ‘The High Court’s Abandonment of “the Time-Honoured Methodology of the Common Law” in Its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta’, Australian Indigenous Law Reporter 8, no. 2 (2003): 1–10.
. Attorney General v. Ngati Apa,  3 NZLR 643. It should be noted that this decision was then overturned by the New Zealand Parliament with the Foreshore and Seabed Act 2004 (NZ), kicking off the ‘foreshore and seabed controversy’. In 2011 the Foreshore and Seabed Act 2004 was repealed and replaced with the Marine and Coastal Area (Takutai Moana) Act 2011, which enabled Maori claimants to claim customary rights over foreshores.
. Webb, ‘The Birthplace of Native Title’, 40.
. National Native Title Tribunal. Accepting Native Title, 5.
. National Native Title Tribunal. Accepting Native Title, 3.
. Native title was subsequently determined to exist in the Wimmera in 2005. First Nations Legal & Research Services, ‘Native Title’, n.d.
. National Native Title Tribunal, Accepting Native Title, 5–6.
. National Native Title Tribunal. Accepting Native Title, 6.
. National Native Title Tribunal, Accepting Native Title, 2.
. Alice Petrie, ‘Land and Water Rights of Traditional Owners in Victoria’, Parliamentary Library & Information Service (Melbourne: Parliament of Victoria, September 2018).
. Marcia Langton and Lisa Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’, Australian Indigenous Law Reporter 8 (2003): 17–19.
. Deirdre Howard-Wagner, ‘Scrutinising ILUAs in the Context of Agreement Making as a Panacea for Poverty and Welfare Dependency in Indigenous Communities’, Australian Indigenous Law Review 14, no. 2 (2010): 100–114; Ciaran O’Faircheallaigh, ‘Native Title and Mining Negotiations: A Seat at the Table, but No Guarantee of Success’, Indigenous Law Bulletin 6, no. 26 (2007): 18–20.
. Marcia Langton and Odette Mazel, ‘Poverty in the Midst of Plenty: Aboriginal People, the ‘Resource Curse’ and Australia’s Mining Boom’, Journal of Energy & Natural Resources Law 26, no. 1 (2008): 31–65.
. Quoted in Eddie Fry, ‘Engaging with the Indigenous Estate’ (Speech, Developing Northern Australia Conference 2017 – Progress, Growth, and Investment, Indigenous Land and Sea Corporation, 20 June 2017).
. Langton and Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’, 4–11.
. Katie O’Bryan, ‘More Aqua Nullius? The Traditional Owner Settlement Act 2010 (Vic) and the Neglect of Indigenous Rights to Manage Inland Water Resources’, Melbourne University Law Review 40, no. 2 (2016): 547. Langton and Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’, 17; Kirstie Wellauer, ‘Indigenous landholders say there’s ‘unfinished business’ with native title — and it’s all about water’, ABC News, 4 June 2022.
. Working Group. The Gillard/Rudd Government accepted the recommendation to legislate an ICDC but did not present legislation before losing office.
. Nicola Roxon (Attorney-General), Second Reading Speech: Native Title Amendment Bill 2012, House of Representatives, Debates, 28 November 2012, 13649–52.
. Australian Law Reform Commission (ALRC), Connection to Country: Review of the Native Title Act 1993 (Cth): Final Report, (Sydney: ALRC, 2015).
. Robyn Gilbert, ‘Connection to Country: The Australian Law Reform Commission Recommends Change to the Native Title Act’, Indigenous Law Bulletin 8 (2017 2012): 12.
. Delgamuukw v British Columbia,  3 SCR 1010. Generally speaking, the test for the existence of aboriginal title adopted by Canadian courts requires only continuous occupation, not a continuity of pre-colonial beliefs and practices.
. George Brandis, ‘Honouring Mabo’s Legacy-the next Phase of Native Title Reform’, James Cook University Law Review 23 (2017): 47–51.
. Anne Ruston, Second Reading Speech: Native Title Legislation Amendment Bill 2020, Senate, Debates, 12 November 2020.
. Senior Officers Working Group, ‘COAG Investigation into Indigenous Land Administration and Use’ (Department of the Prime Minister and Cabinet, December 2015), 38–40.
. Joint Standing Committee on Northern Australia, The engagement of traditional owners in the economic development of northern Australia, (Canberra: House of Representatives, 2022).
. Holly Richardson, ‘“What a Long Time You Have Waited for This”: Massive Tract of Cape York Land Handed Back to Traditional Owners’, ABC News, 25 November 2021.
. Wellauer, ‘Indigenous landholders say there’s ‘unfinished business’ with native title — and it’s all about water’; Stan Gorton, ‘Historic South Coast Native Title Claim Heads to Federal Court’, South Coast Register, 16 February 2018.
. Northern Territory v. Mr A Griffiths at 205.
. Felicity James, ‘High Court Awards NT Native Title Holders $2.5m, Partly for “Spiritual Harm”’, ABC News, 13 March 2019.
. Joint Standing Committee on Northern Australia, Never Again: Inquiry into the Destruction of 46,000 Year Old Caves at the Juukan Gorge in the Pilbara Region of Western Australia – Interim Report (Canberra: Joint Standing Committee, December 2020).
. Francis Markham and William Sanders, Support for a Constitutionally Enshrined First Nations Voice to Parliament: Evidence from Opinion Research since 2017 (Canberra: Centre for Aboriginal Economic Policy Research, ANU: 2020).
. Webb, ‘The Birthplace of Native Title’.
. Anne Twomey, ‘High Court Decision in Love and Thoms Case Reflects Aboriginal Connection to the Land’, ABC News, 11 February 2020.
. Guerin v. The Queen.
. Gover, ‘The Honour of the Crowns’.
. Fejo v. Northern Territory; Lisa Strelein, ‘Fiction over Fact: Extinguishing Native Title in the Larrakia Case’.
. William Isdale, ‘Dr Yunupingu’s Claim for Native Title Compensation – the Constitutional Path Not yet Trodden’, Australian Public Law (blog), 18 March 2020.
. Jonathan Fulcher and William Isdale, ‘Landmark High Court Decision Guides How Compensation for Native Title Losses Will Be Determined’, The Conversation, 14 March 2019.
. Anne Twomey, A Guide through the Mabo Maze, Background Paper, 15, 1993, (Canberra: Parliamentary Library, 1993); Teori Tau v. The Commonwealth,  HCA 62 (1969) 119 CLR 564; Wurridjal v. Commonwealth  HCA 2, (2009) 237 CLR 309.
. Oliver Gordon and Lauren Roberts, ‘“On Just Terms”: NT Land Claim to Use Same Legal Argument as The Castle’, ABC News, 30 November 2019.
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